to the said Krum and Peters for a certain sum, conditioned for, said sum shall be $1,600, of which $200 is to be paid at the above date, and the balance to be paid monthly out of the clear proceeds, that is, after deducting all expense, and out of the clear proceeds cash in hand he shall receive the balance, that is out of the one half; should the quarry prove a failure that no proceeds should be in hand of the second party, or that they should abandon the quarry, believing that the quarry would not be a paying one or a profitable one to them in their estimation, and if the quarry had netted any clear profits to the second party at abandoning the said quarry, then the second party shall not be responsible for any further payment, and this agreement shall be null and void and of no effect.

to them in their estimation, and if the quarry had not netted clear profits to the second party at the time of abandoning the said quarry, the second party shall not be responsible for any further payments. The quarry was given up, but not with the consent of Mr. Mersher. They had a right to give it up under the writing of Mr. Mersher.

It is admitted that the $200 which was stipulated for at the time of the making of the agreement was paid, and the contest now is about the $1,400. The uncontradicted evidence on both sides is and the fact is conceded by the plaintiff, that on the 14th day of June, or thereabouts, 1884, Krum and Peters gave up the lease which they had to Hirsch, and it was ended.

By the agreement Krum and Peters reserved the right to give up the lease; and if they gave up the lease, then they were not obliged to pay after that, provided it was given up in good faith as I shall explain to you presently. You will understand by this agreement, under the construction which the court gives it, that Mersher was to receive, after the $200 had been paid down, one half of the profits for his pay —that is, after deducting the expense of working the quarry from it, if there was any profit, the profit to be divided by two and out of the one half Mersher was to be paid and out of nothing else; and the agreement says if there are no profits, he is to receive no further pay; and by that he must stand.

It has been proved to you, that is the uncontradicted evidence is, that a certain amount was expended between October, when this working was begun, and in June, when it was given up, and that a certain amount of slate was taken out. It was argued by plaintiff's counsel that there would be a profit if you did not take into account the machinery and labor. In the opinion of the court that argument is untenable. There was no profit. The plaintiff has not shown that there was any profit, nor does the defendants' evidence show any profit during the time Krum and Peters worked the quarry. The agreement says out of the profit Mersher is to be paid; and you have the fact that it is not proved that there was any profit during the time they worked, and the fact that the agreement was given up. The plaintiff, then, has no claim against Krum and Peters under his own writing, except on one theory; and the question arising upon that theory will be submitted to you.

The agreement says that if Krum and Peters should abandon the quarry, believing that the quarry was not a paying one or a profitable one

quarry; and therefore the lessees, Krum and Peters, had a right to give up the lease, if they in good faith believed it could not be made to pay. The plaintiff says they did not give it up in good faith; that they gave it up from some other motives, and alleges that at the time the lease was given up the quarry might have been worked with profit by the defendants. If that is proved, the plaintiff may recover].

If the plaintiff recovers, it will be the balance which is owing on the $1,600; but before the plaintiff can recover on this theory and condition he must prove his case. The plaintiff must prove that the quarry could have been worked with a profit, and that it was not given up honestly and in good faith. The plaintiff has testified, as well as witnesses in his behalf, that the quarry at the time it was given up might have been worked with profit; and it has been shown to you on the plaintiff's part what the quarry was, and how it was worked, and what was taken out, and it was argued by plaintiff's counsel that it was profitable. On the defendants' part they allege they gave it a fair trial and that it was worked at a great loss; that the material was not good; that the slates were of such a quality that the product of the quarry would not be marketable. The plaintiff alleges that it was not worked skillfully all the time. From this evidence you are to ask yourselves whether it is proved that the quarry could have been worked at a profit at the time it was given up in June, 1884.

If the material in the quarry was as bad as the defendants say, it is very likely you will come to the conclusion that they could not work the quarry with a profit. This the plaintiff denies and says that the stone there was as good as the average in the region where the quarry was located, and that quarries there could be operated with a profit. The lease was given up in June, 1884. If the plaintiff has satisfied you that the quarry, when the lease was given up, was of such a kind and the material was of such a quality, and the quarry itself was of such a character, as to be workable with profit, the plaintiff can recover. If that is not shown, the plaintiff has no case.

If you consider all the evidence on that question and you are convinced that the quarry could have been worked with profit at the time it was given up, the plaintiff can recover; and

in that event he may recover all that is owing| to him under the stipulation to give him $1,600, $200 of which he already has. It is not enough for the plaintiff in order to recover to show that the defendants gave up the quarry and nothing more, because they reserved by the writing the right to give it up. [The plaintiff can recover on the ground, and on that ground only, that he has satisfied you that when they gave up the lease the quarry might have been worked with a profit.]

The defendants allege that $523.18 has been paid, and that they say is the $200 paid on the agreement which is not disputed, and the store bill of $123.18, and $200 on a note which it appears the defendants indorsed for Mersher and which they afterwards paid. The defendants say that the $200 was paid on the agreement, but the other $325.18 was not paid on account of the $1,600; that they have that as a separate claim, and they plead what they call "set-off" or "defalcation.'

If the plaintiff has not shown that the quarry may have been worked with a profit, your verdict will be in favor of the defendants; and in that case the defendants claim their set-off of $323, which they say the plaintiff owes them outside of this transaction. The law says that where the jury find a set-off in favor of the defendants and against the plaintiff they shall so certify. If you find in favor of the defendants-if you find the quarry could not be worked with a profit--you will say you find in favor of the defendants, and certify that the plaintiff is indebted to the defendants, in the sum of blank dollars, whatever you may estimate that amount to be.

The plaintiff claims the $1,600 stipulated in the agreement. He is willing to take that $523.18 as having been paid on the agreement. If you find in favor of the plaintiff, that would leave $1,086.82 on the $1,600 mentioned in the agreement, which amount he claims with interest from the time it should have been paid up to this day.

[You will take the case and inquire as to the main question, whether the plaintiff has shown that the defendants, when they gave up the lease, by ordinary business enterprise could have worked the quarry with a profit, and that it was not given up in good faith; and if you find that issue in favor of the plaintiff, he will be entitled to your verdict for whatever may appear to be due under the explanations I have given to you.]

Ans. "Negatived." First assignment of error. Verdict and judgment were for the plaintiff for $1,157.09.

The second, third and fourth assignments of error specified, respectively, the portions of the charge inclosed in brackets.

Messrs. John D. Stiles & Son, Levi Smoyer and Edward Harvey, for plaintiffs in error:

Payment of the balance of the consideration was expressly restricted to the one half of the net profits to be realized. The contract is clear upon that point. The mode of payment is agreed upon-the fund out of which payment is to be made is designated-and the contingency upon which payment is made to depend is specified. By the term " profits" is meant the net return to the capital invested after deducting all expenses. As there were no profits there was no fund out of which payment could be exacted.

In Williams v. Hathaway, L. R. 6 Ch. Div. 544, the plaintiff was not permitted to recover because by the terms of the contract he was restricted to a particular fund.

In Chambers v. Jaynes, 4 Pa. 39, the remedy was restricted to separate rents.

See also 1 Whart. Cont. p. 598. By its very terms the contract made the defendants the exclusive and absolute judges of the conditions under which the agreement should become void. The obligation to perform was made dependent upon the contingency that the defendants would conclude, as a matter of opinion, that the quarry could be worked at a profit to them. It is only on the happening of the contingency, whatever it may be, that the obligation to perform becomes operative.

Benninger v. Hankee, 61 Pa. 343.

What does this contract mean but that the defendants will pay the balance of the consideration if they are satisfied the venture will be profitable? If that is the true construction then they are of necessity the exclusive judges of its conditions.

In Grafton v. Eastern Counties R. Co. 8 Exch. 699, the contract provided as a condition precedent that the coke should be furnished to the satisfaction of the inspecting officer of the company. It was held that this was the condition upon the performance of which the contract depended.

The defendants submitted, inter alia, this point:

"Under all the evidence of this cause the defendants are entitled to a verdict."

that an action would not lie to recover a recompense for such work, as the resolution imported that the committee were to judge if any remuneration was due.

but also of convenience and taste. It was held that these words were an express condition that the carriage should meet the approval of the purchaser on the score of convenience and taste; and he was entitled to reject it, provided he did not act from mere caprice.

In McCarren v. McNulty, 7 Gray, 139, the plaintiff agreed to construct a bookcase in a good, strong and workmanlike manner to the satisfaction" of one of the defendants. It was held that proof that it was constructed according to the terms of the agreement would not suffice to support the action, but that the plaintiff must prove that it was satisfactory to or accepted by the defendant. Morton, J., says in the opinion of the court: “Having voluntarily assumed the obligation and the risk of the contract, his legal rights are to be ascertained and determined solely according to its provisions." In Brown v. Foster, 113 Mass. 136, the plaintiff agreed to make the defendant a satisfactory suit of clothes; the defendant returned the delivered suit as unsatisfactory. It was held that an action could not be maintained.

In Zaleski v. Clark, 44 Conn. 218, the plaintiff, a sculptor, made a plaster bust of the deceased husband of the defendant under an agreement that she was not to take it unless she was satisfied with it. When it was finished she was not satisfied, and refused to accept it. In a suit for the price it was found that the bust was a fair piece of work, a correct copy of a photograph furnished by the defendant, and that it accurately portrayed the features of its subject, and that the only fault found with it was that it did not have the expression of the deceased when living, which was caused by no imperfection in the work, but by the nature of the material. It was held that the plaintiff was not entitled to recover.

In Bernard v. Cushing, 4 Met. 230, the payee of a note, at the time it was signed by the maker, and as part of the same transaction, indorsed thereon a promise not to compel payment thereof, but to receive the amount when convenient for the maker to pay it; it was held that the payee could never maintain an action.

In Nelson v. Von Bonnhorst, 29 Pa. 352, a party gave an instrument of writing, under seal, acknowledging an indebtedness to another in a certain amount, and which he agreed "to pay whenever in my opinion my circumstances will enable me to do so." It was held that such instrument imposes no legal obligation which can be enforced by action.

In Hartman v. Blackburn, 7 Pitts. Legal J. 140, a person got a set of teeth from a dentist under an agreement that they were to be satisfactory. It was held that he was the exclusive judge.

All the cases hold that it is not in compliance with such contracts to prove that the defendant ought to have been satisfied.

Messrs. R. E. Wright's Sons and C. J. Erdman, for defendant in error:

Mersher sold his property to Krum and Peters for a consideration which was to be paid out of the income from the products of the quarry. There was, therefore, an implied covenant on the part of Krum and Peters that they would, in good faith, work the quarry with proper diligence, to the end that Mersher might receive the consideration for his sale.

In support of this proposition we refer to the following authorities:

A lease of the right to dig and mine coal, the lessee to pay three eighths of a cent for every bushel he may mine or dig, applies not only to the coal actually mined, but to what the de fendant reasonably could and should have mined upon the land leased. For the quantity not mined, the measure of damages is the difference between the stipulated rate of compensation and the value of the coal left unmined. Lyon v. Miller, 24 Pa. 393.

A lease of a stone quarry in consideration that the lessee shall pay to the lessor a certain price per perch for all stone taken out of it, is a contract on the part of the lessee that he will work the quarry; and upon his failure so to do the lessor may maintain covenant on the contract and recover damages. And one verdict and judgment on such contract, pending the lease, is not a bar to another, when the term is further advanced.

Watson v. O'Hern, 6 Watts, 362.

Where the right to mine ore or other minerals is granted in consideration of the reservation of a certain proportion of the product to the grantor, the law implies a covenant on the part of the grantee to work the mine in a proper manner, and with reasonable diligence, so that the grantor may receive the compensation or income contemplated when the agreement was entered into; but unless there are special reasons for equitable interference such covenant will not be enforced in a court of equity, as an adequate remedy is afforded by an action at law for damages.

Koch's App. 93 Pa. 434.

In Singerly v. Thayer, 108 Pa. 291, the words of the contract were: Warranted satisfactory in any respect." The court below charged the jury that if they were of the opinion that the elevator was reasonably fit for the purpose for which it was intended and the defendant ought to have been satisfied with it, the verdict might be for the plaintiff. This was held to be error. The fair inference from the contract was that the elevator was to be satisfactory to the defendant; and while it could not be rejected for

to work it diligently, and that if the failure to realize the profits, out of which we were to be paid, arose from their clear breach of their implied covenant, they were chargeable with such profits as they might have realized through a proper performance of their implied covenant.

The agreement did not give the plaintiffs in error the right out of mere obstinacy and caprice and without honest cause to abandon the quarry, keep the personalty, and deprive the defendant in error of compensation. He did not agree to part with his property, leaving his compensation dependent upon the mere whim of the purchaser.

actually conducting at his own expense, the practical operations concerning which he testifies. He ventures nothing but an opinion and in that he assumes no risk. Upon reading the testimony in this case we find that it was tried upon this principle precisely. Witnesses were examined on behalf of the plaintiff, to prove that the quarry could be worked at a profit, and they gave their opinions to that effect.

1 Whart. Cont. p. 787; Singerly v. Thayer, 108 Pa. 298; 1 Pars. Cont. 542; Andrews v. Belfield, 2 C. B. N. S. 779.

Mr. Justice Green delivered the opinion of the court:

We think the learned court below was in error in the interpretation of the clause of the contract which subjected its obligatory force to the will of the grantees. The language of this portion of the agreement is certainly inartistic and indeed uncouth. But it is not unintelligible.

It is practically conceded in the charge that Krum and Peters had a right to give up the lease if they in good faith believed it could not be made to pay." We agree with this, but as we understand the charge, this is not the question upon which the case was given to the jury. On the contrary the court said: "I say to you that when this lease was given up in June, 1884, if it is proved that at that time, by ordinary diligence and ordinary business enterprise and capacity, it might have been made to pay a profit, Mr. Mersher may recover because there is implied in this agreement a covenant or understanding that they shall work it in an ordinary workmanlike manner.'

And again: "If the plaintiff has satisfied you that the quarry when the lease was given up was of such a kind and the material was of such a quality, and the quarry itself was of such a character, as to be workable with profit, the plaintiff can recover. *** If you consider all the evidence on that question, and you are convinced that the quarry could have been worked with profit at the time it was given up, the plaintiff can recover."

The same idea was repeated at the close of the charge, where it was characterized as the main question.

According to this view of the defendants' obligation it did not depend in any degree upon their own estimation or belief as to their ability to work the quarry at a profit; nor even upon the actual results of the best and most faithful efforts they could put forth with whatever capital or facilities they possessed. Instead of that the crucial test of liability as stated to the jury was the possibility of the quarry being worked at a profit with ordinary diligence by any body or by any means.

That of course is a mere question of opinion, to be proved by witnesses who would testify as to their belief on the subject, and who might thus induce a jury to find according to their belief as to what could be done with the quarry. Such opinions as this are easily obtained from willing friends of the interested parties, as unhappily is the case in too many other kinds of cases. They cost nothing to the witness. He

It was proved most clearly for the defense that in point of fact no profit was made, but on the contrary, a heavy loss; and there was no proof in the case that in reality any profit was made, yet the jury were instructed that if they found that the quarry could be worked at a profit the plaintiff was entitled to recover. But the agreement provided for a very different standard of liability. The language is: "Should the quarry prove a failure that no proceeds should be in hands of the second party, or that they would abandon the quarry believing that the quarry would not be a paying one or a profitable one to them in their estimation, and if the quarry had not netted any clear profit to the second party, at abandoning said quarry, then the second party shall not be responsible for any further payment, and this agreement shall be null and void, and of no effect."

All this verbiage simply means that if Krum and Peters made no profit, and believed that the quarry was not a profitable one to work they could abandon the quarry and the contract was a nullity. In other words, the test of their right to terminate the contract was the fact that they had made no profit, and their belief that the quarry was not a profitable one to work. It was conceded they had made no profit, and the proof was most ample that they believed the quarry to be an unprofitable one to work, and they did actually abandon it, and surrendered the lease. Now, according to the terms of their contract, they were entitled to have their liability tried by these tests. Did they make no profit and did they really believe the quarry an unprofitable one? If so, they were not liable, and there could be no recovery. They had an undoubted right to contract in that way if the other party was willing, as he certainly was.

The books abound with authorities which prove this, but a single reference is sufficient. Singerly v. Thayer, 108 Pa. 291.

In a contract for an elevator the words were "Warranted satisfactory in every respect." The court below charged the jury that if they were of the opinion that the elevator was reasonably fit for the purpose for which it was intended, and the defendant ought to have been satisfied with it, the verdict might be for the plaintiff. We held that this was error. The fair inference from the contract was that the elevator was to be satisfactory to the defendant, and while it could not be rejected for mere caprice, yet a bona fide objection by him to its working was a sufficient defense. The present Chief Justice said, speaking of the charge of the court below: "In other words it may have been wholly unsatisfactory to him, yet if the jury thought he ought to have been satisfied he was bound to accept it. In effect that is it need not have operated to his satisfaction in any respect, but to the satisfaction of the jury which might